CriminalLawby Joshua Dressler

Frank R. Strong Chair in LawMichael E. Moritz College of Law

The Ohio State University

S E C O N D E D I T I O N

Mat #41030653

B L A C K L E T T E R O U T L I N E S

Thomson Reuters created this publication to provide you with accurate and authoritative informationconcerning the subject matter covered. However, this publication was not necessarily prepared bypersons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legalor other professional advice, and this publication is not a substitute for the advice of an attorney. Ifyou require legal or other expert advice, you should seek the services of a competent attorney orother professional.

Black Letter Series and Black Letter Series design appearing on the front coverare trademarks registered in the U.S. Patent and Trademark Office.

© West, a Thomson business, 2005© 2010 Thomson Reuters

610 Opperman DriveSt. Paul, MN 55123800−313−9378

Printed in the United States of America

ISBN 978−0−314−92750−7

Capsule Summary ofCriminal Law

■ PART ONE: INTRODUCTORY PRINCIPLES

I. CRIMINAL LAW OVERVIEW

A. “Criminal” versus “Civil”

1. The Essence of the Criminal Law

What distinguishes a criminal from a civil sanction and all that distin-guishes it, is the judgment of community condemnation that accompa-nies and justifies its imposition. A “crime” is (or, at least should be)limited to conduct that, if duly shown to have taken place, will incur aformal and solemn pronouncement of the moral condemnation of thecommunity.

1

B. Sources of the Criminal Law

1. Common Law

“Common law” is judge-made law. For the most part, British commonlaw became American common law.

2. Statutes

Today, all criminal lawyers in this country turn first to a book—oftencharacterized as a “penal code”—that contains legislatively-drafteddefinitions of crimes, defenses to crimes, and other relevant doctrines ofcriminal law, which apply in that lawyer’s jurisdiction.

3. Model Penal Code

The Model Penal Code (typically abbreviated as “MPC”) is a codecreated in the 1950s and adopted in 1962 by the American Law Institute,a prestigious organization composed of top judges, scholars, and law-yers. Portions of the MPC have become law in many states.

C. Limits on the Criminal Law

State and federal legislation is subject to the strictures of the United StatesConstitution (and, with state laws, the constitution of the relevant state).Some of these strictures are discussed throughout this Outline.

D. Burden of Proof: Basics

A basic American principle of criminal law is that a defendant is presumedinnocent. The Due Process Clauses of the Fifth and Fourteenth Amendmentsof the Constitution require that, to convict a defendant, the government mustpersuade the factfinder beyond a reasonable doubt of every fact necessary toconstitute the crime charged.

E. Judge versus Jury

1. Constitutional Law

The Sixth Amendment to the United States Constitution provides that“in all criminal prosecutions, the accused shall enjoy the right to aspeedy and public trial, by an impartial jury.” Despite the phrase “in allcriminal prosecutions,” the Supreme Court has generally limited the

2 CAPSULE SUMMARY

right to a jury trial to prosecutions for crimes for which the maximumpotential punishment exceeds incarceration of six months.

2. Jury Nullification

Jury nullification occurs when the jury decides that the prosecution hasproven its case beyond a reasonable doubt, but for reasons of conscienceit disregards the facts and/or the law and acquits the defendant. Jurorshave the power to nullify, but not the right to do so. Therefore, adefendant is not entitled to have the jury instructed that it may nullifythe law.

II. “TOOLS” OF THE CRIMINAL LAW

A. Theories of Punishment

1. Different Theories

Two broad theories of punishment exist: utilitarianism and retribution.

2. Principles of Utilitarianism

a. Augmenting Happiness

Utilitarianism holds that the general object of all laws is to augmentthe total happiness of the community by excluding, as much aspossible, everything that subtracts from that happiness, i.e., every-thing that causes “mischief” (pain).

b. Role of Punishment

Both crime and punishment are evils because they both result inpain to individuals and to society as a whole. Therefore, the pain ofpunishment is undesirable unless its infliction is likely to prevent agreater amount of pain in the form of future crime.

c. Forms of Utilitarianism

i. General Deterrence

A person is punished in order to send a message to others (thegeneral society or, at least, persons who might be contemplat-ing criminal conduct) that crime does not pay.

CAPSULE SUMMARY 3

ii. Specific Deterrence

D is punished in order to deter D from future criminal activity.This is done in either of two ways: by incapacitation (incarcera-tion of D prevents her from committing additional crimes in thegeneral community for the duration of her sentence); and/or byintimidation (D’s punishment serves as a painful reminder, sothat upon release D will be deterred from future criminalconduct).

iii. Rehabilitation

Advocates of this form of utilitarianism believe that the crimi-nal law can prevent future crime by reforming an individual, byproviding her with employment skills, psychological aid, etc.,so that she will not want or need to commit offenses in thefuture.

3. Principles of Retribution

a. Just Deserts

Punishment of a wrongdoer is justified as a deserved response towrongdoing. Retributivists punish because of the wrongdoing—thecriminal gets his just deserts—regardless of whether such punish-ment will deter future crime.

b. Rationale

Wrongdoing creates a moral disequilibrium in society. The wrong-doer obtains the benefits of the law (namely, that other people haverespected his rights), but he does not accept the law’s burdens(respecting others’ rights). Proportional punishment of the wrongdoer—“paying his debt”—brings him back into moral equilibrium. An-other justification is that both crime and punishment are forms ofcommunication: one who commits a crime sends an implicit mes-sage to the victim that the wrongdoer’s rights are more importantthan others’ rights; punishment is a symbolic way of showing thecriminal—and reaffirming for victims—that this message was wrong.Punishment proportional to the offense defeats the offender: itbrings him down to his proper place in relation to others.

4 CAPSULE SUMMARY

B. Proportionality of Punishment

1. General Principle

A general principle of criminal law is that punishment should beproportional to the offense committed.

2. Utilitarian Meaning

Punishment is proportional if it involves the infliction of no more painthan necessary to fulfill the law’s deterrent goal of reducing a greateramount of crime.

3. Retributive Meaning

Punishment should be proportional to the harm caused on the presentoccasion, taking into consideration the actor’s degree of culpability forcausing the harm.

4. Constitutional Law

The Eighth Amendment Cruel and Unusual Punishment Clause prohib-its grossly disproportional punishment.

a. Death Penalty Cases

The Supreme Court has held that death is grossly disproportionalpunishment for the crime of rape, because the latter offense does notinvolve the taking of human life.

b. Imprisonment Cases

According to the Supreme Court’s most recent pronouncement,there is only a very “narrow proportionality principle” outside thecontext of the death penalty. The legislature (not the judiciary) hasprimary authority in setting punishments. No non-capital incarcera-tive punishment will be declared unconstitutional unless there areobjective grounds—not simply a judge’s own subjective views of thepropriety of the punishment—for determining that the punishmentis grossly disproportionate to the crime.

C. Legality

1. Requirement of Previously Defined Conduct

a. General Principle

The so-called “principle of legality” is that there can be no crimewithout (pre-existent) law, no punishment without (pre-existent)law.

CAPSULE SUMMARY 5

b. Constitutional Law

The principle of legality not only is a common law doctrine, but hasdeep constitutional roots. Legislatures are prohibited by the Ex PostFacto Clause of the United States Constitution from enacting lawsthat would punish conduct that was lawful at the time of itscommission, or that increases the punishment for an act committedbefore the law took effect. In turn, courts are prohibited fromenlarging the scope of criminal statutes by the Due Process Clause.

2. Fair Notice

A corollary of the legality principle is that a person may not be punishedfor an offense unless the statute is sufficiently clear that a person ofordinary intelligence can understand its meaning. This is a fundamentalcommon law concept, with constitutional roots as well in the DueProcess Clause.

3. Nondiscriminatory Enforcement

Another corollary of the legality principle is that a criminal statuteshould not be so broadly worded that it is susceptible to discriminatoryenforcement by law enforcement officers, thereby unduly expandinggovernment power.

D. Burden of Proof

1. Burden of Production

This burden relates to the question of which party—the defendant or thegovernment—has the obligation to first introduce evidence on a givenissue. The party with this obligation, who fails to satisfy this burden,loses on the issue. In general, the government has the burden ofproduction regarding elements of a crime; the defendant carries theburden as to affirmative defenses.

2. Burden of Persuasion

Once the burden of production has been satisfied, the next questionbecomes: who has the burden of persuading the factfinder on theparticular issue? The party with the burden of production need not havethe burden of persuasion.

6 CAPSULE SUMMARY

a. Degree of Burden

i. Elements of a Crime

The Due Process Clause of the Constitution requires that thegovernment carry the burden of persuasion, beyond a reason-able doubt, as to “every fact necessary to constitute the crimecharged.” The Court has limited the word “fact”—and, thus,the prosecutor’s constitutional obligation to carry the burden ofproduction beyond a reasonable doubt—to elements of anoffense, and not to defenses and mitigating factors.

ii. Defenses to Crimes

A legislature is free to place the burden of persuasion regardinga criminal law defense on either party—the defendant orgovernment—and to set the burden very high (proof beyond areasonable doubt), somewhat high (clear and convincing evidence)or low (proof by preponderance of the evidence).

■ PART TWO: ACTUS REUS

I. ACTUS REUS: OVERVIEW

A. Definition

The “actus reus” of an offense is the physical, or external, component of acrime what society does not want to occur.

B. Two Elements

The actus reus of a crime consists of two components, both of which must beproved by the prosecutor beyond a reasonable doubt.

1. Voluntary Act or Legal Omission

Generally speaking, there can be no crime in the absence of conduct. But,only a certain type of conduct qualifies, namely, conduct that includes a

CAPSULE SUMMARY 7

voluntary act. In rare circumstances, a person may be prosecutedbecause of what he or she did not do—an absence of conduct. An“omission” substitutes for a voluntary act when the defendant has alegal duty to act.

2. Social Harm

People are not punished for conduct (or omissions), but rather forconduct (or omissions) that result in “social harm.”

II. VOLUNTARY ACT

A. General Rule

A person is not ordinarily guilty of a criminal offense unless his conductincludes a voluntary act.

1. Common Law Definition of Voluntary Act

A “voluntary act” is a willed muscular contraction or bodily movementby the actor. An act is “willed” if the bodily movement was controlled bythe mind of the actor.

2. Model Penal Code

The MPC does not define “voluntary act.” It provides examples ofinvoluntary actions: a reflex or convulsion; bodily movement whileunconscious or asleep; conduct during hypnosis or as a result ofhypnotic suggestion; and/or “a bodily movement that otherwise is nota product of the effort or determination of the actor, either conscious orhabitual.”

3. Constitutional Law

The Supreme Court has never expressly held that punishment of aninvoluntary actor is unconstitutional. However, it has invalidated stat-utes that criminalize a “status” or “condition” (such as being a drugaddict), rather than conduct.

4. Important Study Point

To be guilty of an offense, it is sufficient that the person’s conductincluded a voluntary act. It is not necessary that all aspects of his conduct bevoluntary.

8 CAPSULE SUMMARY

B. Rationale of Voluntary Act Requirement

1. Utilitarian

A person who acts involuntarily cannot be deterred. Therefore, it isuseless to punish the involuntary actor. It results in pain without thebenefit of crime reduction.

2. Retribution

A more persuasive justification for the voluntary act requirement is thatblame and punishment presuppose free will: a person does not deserveto be punished unless she chooses to put her bad thoughts into action.

III. OMISSIONS

A. General Rule

Ordinarily, a person is not guilty of a crime for failing to act, even if suchfailure permits harm to occur to another, and even if the person could act atno risk to personal safety.

B. Rationale for the General Rule

1. Proving the Omitter’s State of Mind

Criminal conduct requires a guilty state of mind (mens rea). It isunusually difficult to determine the state of mind of one who fails to act.

2. Line-drawing problems

Difficult line-drawing problems—which omitters should be prosecuted?—arise in omission cases.

3. Promoting individual liberty

In a society such as ours, premised on individual liberties and limitedgovernment, the criminal law should be used to prevent persons fromcausing positive harm to others, but it should not be used to coercepeople to act to benefit others.

C. Exceptions to the General Rule

Notwithstanding the general rule, a person has a legal duty to act in limitedcircumstances, if he is physically capable of doing so.

CAPSULE SUMMARY 9

1. Crimes of Omission: Statutory Duty

Some statutes expressly require a person to perform specified acts.Failure to perform those acts, by definition, constitutes an offense. Suchan offense may be characterized as a “crime of omission.”

2. Crimes of Commission

The criminal law sometimes permits prosecution for a crime of commis-sion (an offense that, by definition, appears to require proof of conduct,rather than an omission), although the basis of the prosecution is anomission. Thus, we have a case of what might be characterized ascommission-by-omission.

a. Duty by Status

A person has a common law duty to protect another with whom hehas a special status relationship, typically, one based on dependencyor interdependency, such as parent-to-child, spouse-to-spouse, andmaster-to-servant.

b. Duty by Contract

A person may have an express contract to come to the aid of another,or such a contract may be implied-in-law.

c. Duty by Voluntary Assumption

One who voluntarily assumes the care of another must continue toassist if a subsequent omission would place the victim in a worseposition than if the good samaritan had not assumed care at all.

d. Duty by Risk Creation

One who creates a risk of harm to another must thereafter act toprevent ensuing harm.

IV. SOCIAL HARM

A. Definition

“Social harm” may be defined as the destruction of, injury to, or endanger-ment of, some socially valuable interest.

10 CAPSULE SUMMARY

B. Identifying the Social Harm

You can determine the “social harm” of an offense by looking at thedefinition of the crime and identifying the elements of it that describe theexternal conduct that constitutes the crime.

C. Breaking Down the Social Harm Into Categories

It is sometimes essential for a lawyer (especially in jurisdictions that followthe Model Penal Code) to be able to look at the definition of a crime, morespecifically the actus reus portion, and divide up the “social harm” elementsinto one or more of the following three categories.

1. “Result” Elements (or Crimes)

Some crimes prohibit a specific result, such as the death of anotherperson.

2. “Conduct” Elements (or Crimes)

Some crimes prohibit specific conduct, whether or not tangible harmresults thereby, such as offenses that prohibit drunk driving.

3. “Attendant Circumstance” Elements

A “result” or “conduct” is not an offense unless certain “attendantcircumstances” exist. An “attendant circumstance” is a fact that exists atthe time of the actor’s conduct, or at the time of a particular result, andwhich is required to be proven in the definition of the offense.

■ PART THREE: MENS REA

I. MENS REA: GENERAL PRINCIPLES

A. Meaning of “Mens Rea”

1. Broad (“Culpability”) Meaning

A person has acted with “mens rea” in the broad sense of the term if shecommitted the actus reus of an offense with a “vicious will,” “evil mind,”or “morally blameworthy” or “culpable” state of mind.

CAPSULE SUMMARY 11

2. Narrow (“Elemental”) Meaning

“Mens rea” exists in the narrow sense of the term if, but only if, a personcommits the actus reus of an offense with the particular mental state setout expressly in the definition of that offense. This may be called the“elemental” definition of mens rea.

B. Rationale of the Mens Rea Requirement

1. Utilitarian Argument

It is frequently asserted that a person who commits the actus reus of anoffense without a mens rea is not dangerous, could not have beendeterred, and is not in need of reform. Therefore, her punishment wouldbe counter-utilitarian. (There is a competing utilitarian argument set outin the Main Outline.)

2. Retributive Argument

The mens rea requirement is solidly supported by the retributive princi-ple of just deserts. A person who commits the actus reus of an offense ina morally innocent manner, i.e., accidentally, does not deserve to bepunished, as she did not choose to act unlawfully.

II. COMMON LAW

A. “Intentionally”

1. Definition

A person commits the social harm of an offense “intentionally” if: (1) itwas her conscious object to cause the result; or (2) if she knew that theresult was virtually certain to occur because of her conduct.

2. Transferred Intent Doctrine

Courts frequently speak of a “transferred intent” doctrine: A person acts“intentionally” as the term is defined above, if the result of her conductdiffers from that which she desired only in respect to the identity of thevictim.

B. “Knowledge” or “Knowingly”

1. Definition

Some offenses require proof that the actor had knowledge of anattendant circumstance. At common law, a person acts “knowingly”

12 CAPSULE SUMMARY

regarding an existing fact (an “attendant circumstance”) if she either: (1)is aware of the fact; (2) correctly believes that the fact exists; or (3)suspects that the fact exists and purposely avoids learning if hersuspicion is correct. The latter form of “knowledge” is sometimes called“wilful blindness.”

C. Risk-Taking: “Recklessness” and “Criminal Negligence”

1. Overview

Risk-taking is properly divisible into various types: justifiable risk-taking; unjustifiable risk-taking that may properly result in tort dam-ages; and unjustifiable risk-taking that may also result in criminalpunishment. The latter forms of risk-taking are frequently described as“negligent” risk-taking and “reckless” risk-taking.

2. Unjustified Risk-Taking

In order to determine whether risk-taking is justifiable or not, one mustlook at three factors: the gravity of harm that a reasonable person wouldforesee might occur as the result of the risk-taking conduct; the probabil-ity that this harm will occur; and the reason for the proposed conduct, i.e.,the benefit to the individual or society of taking the risk. A risk isunjustifiable if the gravity of the foreseeable harm, multiplied by theprobability of its occurrence, outweighs the foreseeable benefit from theconduct.

3. “Criminal Negligence”

A person acts in a “criminally negligent” manner if she should be awarethat her conduct creates a substantial and unjustifiable risk of socialharm. Synonyms for “criminal negligence,” include “gross negligence”and “culpable negligence.”

4. “Recklessness”

a. Holmes’s View

Oliver Wendell Holmes, Jr., believed that a person acts “recklessly”if she should be aware that she is taking a very substantial andunjustifiable risk. This is simply a heightened version of “criminalnegligence.” Notice: “civil negligence” involves unjustifiable risk-

CAPSULE SUMMARY 13

taking; “criminal negligence” is substantial and unjustifiable risk-taking; and “recklessness” (as defined here) is very substantial andunjustifiable risk-taking.

b. Modern Definition

Most courts now provide that a person acts “recklessly” if sheconsciously disregards a substantial and unjustifiable risk that herconduct will cause the social harm of the offense. Under thisdefinition, “recklessness” differs from “criminal negligence” in thatit requires that the actor subjectively be aware of the substantial andunjustifiable risk.

D. “Malice”

A person acts with “malice” if she intentionally or recklessly causes the socialharm of an offense, as the latter mens rea terms are defined above.

E. “Specific Intent” and “General Intent”

The common law distinguishes between “general intent” and “specificintent” crimes. The distinction is critical, because some defenses apply only,or more broadly, in the case of so-called “specific intent” offenses.

1. “Specific Intent” Offenses

In most cases, a “specific intent” offense is one that explicitly contains oneof the following mens rea elements in its definition: (1) the intent tocommit some act over and beyond the actus reus of the offense; (2) aspecial motive for committing the actus reus of the offense; or (3)awareness of a particular attendant circumstance.

2. “General Intent” Offenses

Any offense that requires proof of a culpable mental state, but whichdoes not contain a specific intent, is a “general intent” offense. Some-times, such an offense will have no explicit mens rea term in the definitionof the offense; it is enough that the defendant committed the actus reuswith any culpable state of mind.

F. Statutory Construction

A frequent issue in criminal law litigation is whether a mens rea term in thedefinition of an offense applies to all or only some of the actus reus elements

14 CAPSULE SUMMARY

in the definition of the crime. In the absence of explicit rules, courts havestruggled to interpret modern statutes.

1. Common Law Interpretive Rules Of Thumb

a. Legislative intent

The ultimate issue for any court today—always—is to determinewhat the legislature intended. A court will try to resolve interpretiveproblems by ascertaining the intention of the drafters of the law,sometimes by looking through legislative history. Often, however,evidence regarding legislative intent is non-existent or ambiguous,so courts must look elsewhere.

b. Position of the Mens Rea term in Definition of Offense

Courts often look at the placement of the mens rea term in thedefinition of the offense, in order to ascertain legislative intent. Seethe Main Outline for a useful example.

c. Punctuation

Sometimes punctuation is relied upon to determine that a phrase setoff by commas is independent of the language that precedes orfollows it.

d. Attendant Circumstances

Courts sometimes assume that, absent evidence to the contrary,mens rea terms in the definitions of offenses do not apply to“attendant circumstance” elements of the crime.

III. MODEL PENAL CODE

A. Section 2.02, Subsection 1

1. Language

In general, “a person is not guilty of an offense unless he actedpurposely, knowingly, recklessly, or negligently, as the law may require,with respect to each material element of the offense.”

2. Significance of Subsection

a. Role of Mens Rea

In general, the MPC requires proof of mens rea. More significantly, itrequires proof of some particular mens rea—purpose, knowledge,

CAPSULE SUMMARY 15

recklessness, or negligence—as to each material element of theoffense. This contrasts with the common law, where there might bea mens rea requirement as to one element but no mens rea required asto other elements. In other words, with the MPC, each actus reuselement should be “covered” by some mens rea requirement.

B. Culpability Terms Defined

1. Purposely

The common law term “intentionally” is not used in the Model PenalCode. Instead, the MPC subdivides “intent” into its two alternativecomponents, and calls them “purposely” and “knowingly.” A personcauses a result “purposely” if it is her conscious object to cause the result.

2. Knowingly

a. Results

A person “knowingly” causes a result if she is aware that the resultis “practically certain” to occur from her conduct.

b. Attendant Circumstances

A person acts “knowingly” as to an attendant circumstance if he isaware that the circumstance exists, or if he is aware “of a highprobability of its existence, unless he actually believes that it doesnot exist.” The latter provision is the Code version of the “wilfulblindness” doctrine discussed earlier.

3. Recklessly

a. Basic Definition

A person is said to have acted recklessly if “he consciously disre-gards a substantial and unjustifiable risk that the material elementexists or will result from his conduct.”

b. Standard for Evaluating Conduct

The Code provides, basically, that the standard discussed earlier—measuring the gravity of foreseeable harm, the probability of itsoccurrence, and the reasons for taking the risk—should be applied.

16 CAPSULE SUMMARY

One is reckless when the risk-taking “involves a gross deviationfrom the standard of care that a reasonable person would observe inthe actor’s situation.”

4. Negligently

A person acts negligently when he should be aware of a “substantial andunjustifiable risk.” This is a risk that constitutes “a gross deviation fromthe standard of care that a reasonable person would observe in theactor’s situation.” The critical difference between recklessness andnegligence under the Code is that in the former case, the actor isconsciously aware of the substantial and unjustifiable risk, but proceedsanyway; in the case of negligence, the actor is not aware of the risk, butshould be.

C. Interpretative Rules

1. Default Position

The MPC requires some mens rea term for each element of an offense(§ 2.05 aside). If the statute defining an offense is silent regarding theissue of mens rea as to one or more of the actus reus elements, the Codeprovides that “such element is established if a person acts purposely,knowingly, or recklessly with respect thereto.” In essence, you fill in theblank with “purposely, knowingly, or recklessly.”

2. When Just One Mens Rea Term is Mentioned

If the definition of a MPC statute only sets out a single mens rea elementin the definition of the offense, that mens rea term applies to everymaterial element of the offense, unless a contrary legislative intent“plainly appears.”

IV. STRICT LIABILITY

A. Nature of a Strict Liability Offense

An offense is “strict liability” in nature if commission of the actus reus of theoffense, without proof of a mens rea, is sufficient to convict the actor.

B. Public Welfare Offenses

Strict liability most often applies in relation to “public welfare” offenses.

CAPSULE SUMMARY 17

1. Characteristics of Most Public Welfare Offenses

a. Nature of the Conduct

Such offenses typically involve malum prohibitum conduct, i.e.,conduct that is wrongful only because it is prohibited (e.g., motorvehicle laws), as distinguished from malum in se conduct, i.e.,inherently wrongful conduct (e.g., murder).

b. Punishment

The penalty for violation of a public welfare offense is usuallyminor, such as a monetary fine or a very short jail sentence.

c. Degree of Social Danger

A single violation of a public welfare offense often threatens thesafety of many persons, e.g., transportation of explosives on ahighway not designated for such use.

C. Non-Public Welfare Offenses

On rare occasion, non-public welfare offenses are considered strict liability innature. Statutory rape is the most common example of such an offense.

D. Constitutionality of Strict Liability Offenses

Strict-liability offenses are not per se unconstitutional. Nonetheless, there is astrong presumption against strict liability as to offenses that have their rootsin the common law. In such circumstances, a court will not assume (absentevidence to the contrary) that the legislature intended to abandon thecommon law mens rea requirement, even if the statute is silent regarding thiselement.

■ PART FOUR: MENS REA AND MISTAKES OF FACT ORLAW

I. MISTAKE OF FACT

A. Common Law

1. Specific-Intent Offenses

A defendant is not guilty of a specific-intent crime if her mistake of factnegates the specific-intent element of the offense. Even an unreasonable

18 CAPSULE SUMMARY

mistake of fact—a mistake that a reasonable person would not make—may exculpate the actor, assuming the mistake negatives the mens rearequired for the offense.

2. General-Intent Offenses

a. Ordinary Rule

A defendant is not guilty of a general-intent offense if her mistake offact was reasonable. An unreasonable mistake of fact does notexculpate.

b. Exception: “Moral Wrong” Doctrine

Although the principle stated above is the general rule, on rareoccasion a court will convict a defendant of an offense, although hermistake of fact was reasonable, if her conduct violates the “moralwrong” doctrine. This doctrine provides that there should be noexculpation for a mistake where, if the facts had been as the actorbelieved them to be, her conduct would be immoral, albeit legal. Byknowingly committing a morally wrong act, an actor assumes therisk that the facts are not as she believed them to be, i.e., that heractions are not just morally wrong, but also legally wrong.

c. Alternative Exception: “Legal Wrong” Doctrine

Occasionally, a court will convict a defendant of an offense, al-though her mistake of fact was reasonable, if her conduct violatesthe “legal wrong” doctrine. This rule substitutes the word “illegal”for “immoral” in the description of the moral-wrong doctrine, but isotherwise applied in the same manner. Thus, a person is guilty ofcriminal offense X, despite a reasonable mistake of fact, if she wouldbe guilty of a different, albeit lesser, crime Y, if the factual situationwere as she supposed.

3. Strict-Liability Offenses

A mistake of fact, whether reasonable or unreasonable, is never a defenseto a strict-liability offense. This rule is logical: a strict-liability offense isone that requires no proof of mens rea. Therefore, there is no mens rea tonegate. A defendant’s mistake of fact is legally irrelevant.

B. Model Penal Code

1. General Rule

Subject to one exception noted below, a mistake of fact is a defense to acrime if the mistake negates a mental state element required in the

CAPSULE SUMMARY 19

definition of the offense. The Code dispenses with the common lawdistinction between “general intent” and “specific intent” offenses: themistake-of-fact rule applies to all offenses in the same manner.

2. Exception to the General Rule

In a variation on the common law legal-wrong doctrine, the defense ofmistake-of-fact is inapplicable if the defendant would be guilty of alesser offense had the facts been as she believed them to be. However,under such circumstances—unlike the common law—the defendant willbe punished at the level of the lesser, rather than the greater, offense.

II. MISTAKE OF LAW

A. General Principles

1. General Rule

In general, knowledge of the law is not an element of an offense.Moreover, a mistake of law—even a reasonable one!—does not ordi-narily relieve an actor of liability for the commission of a criminaloffense.

2. Purported Justifications for the Rule

a. Certainty of the Law

The law is definite. Therefore, any mistake of law is inherentlyunreasonable. See the Main Outline for rebuttal arguments.

b. Concern about Fraud

If a mistake-of-law defense were recognized, it would invite fraud.Every defendant would assert ignorance or mistake, and it would benearly impossible to disprove the claim. See the Main Outline forrebuttal arguments.

c. Promoting Knowledge of the Law

We want people to learn the law. To promote education—to deterignorance—the law must apply strict liability principles. See theMain Outline for rebuttal arguments.

20 CAPSULE SUMMARY

B. Exceptions to the General Rule

1. Mistakes That Negate the Mens Rea

A defendant is not guilty of an offense if his mistake of law, whetherreasonable or unreasonable, negates an element of the crime charged.

2. Authorized-Reliance Doctrine

A person is not guilty of a criminal offense if, at the time of the offense,he reasonably relied on an official statement of the law, later determinedto be erroneous, obtained from a person or public body with responsi-bility for the interpretation, administration, or enforcement of the lawdefining the offense.

a. On Whom or What Body is Reliance Reasonable

Although the common law is less clear than the Model Penal Codein this regard, apparently a defendant may reasonably rely on anofficial statement of the law found in a statute, judicial opinion,administrative ruling, or an official interpretation of the law givenby one who is responsible for the law’s enforcement or interpreta-tion, such as the United States or State Attorney General.

3. Due Process Clause

In very rare circumstances, it offends due process to punish a person fora crime of which she was unaware at the time of her conduct. The DueProcess Clause apparently is violated if three factors exist: (1) the“unknown” offense criminalizes an omission; (2) the duty to act is basedon a status condition rather than conduct; and (3) the offense is malumprohibitum in nature.

■ PART FIVE: CAUSATION

I. ACTUAL CAUSE (CAUSE-IN-FACT)

A. General Principles

1. Rule

A person is not guilty of an offense unless she is an actual cause of theensuing harm. Both the common law and the Model Penal Code provide

CAPSULE SUMMARY 21

that conduct is the “actual cause” of the prohibited result if the resultwould not have occurred but for the actor’s conduct.

B. Steps for Determining the “Actual Cause”

1. Identifying the Relevant Conduct

Determine what is (are) the relevant voluntary act(s) committed by D. Ifthe case is based on an omission, determine what the omission is, andsubstitute that for the “voluntary act” in the following discussion.

2. Frame the Question Properly

Ask the question: “But for D’s voluntary act(s) would the social harmhave occurred when it did?” If the social harm would have occurredwhen it did even if D had not acted, D is not the actual cause of the harmand, therefore, is not guilty of the offense. In a sense, “yes” means “no”(no criminal liability). If the social harm would not have occurred whenit did but for D’s voluntary act(s), D is an actual cause of the social harm,in which case you move on to the remaining causation issue (proximatecause).

C. Multiple Actual Causes

There usually are multiple actual causes of a result. A person who dies oflung cancer, for example, might not have died when she did but for hersmoking habit and living in a smog-polluted city. It can also be the case thattwo persons—two potential defendants—are the actual cause of a result. Seethe Main Outline for useful examples.

D. Concurrent Sufficient Causes

In rare circumstances, the “but for” test may fail to reach the morally sensibleresult. The problem arises when two acts, either one of which is sufficient tocause the resulting harm when it did, occur concurrently. See the MainOutline for useful examples.

1. Substantial Factor Test

In such cases, many courts resort to the “substantial factor” test, astandard that is often used in tort cases. The question to be asked is:“Was D’s conduct a substantial factor in the resulting harm?”

22 CAPSULE SUMMARY

2. Model Penal Code

The MPC does not apply the substantial factor test—it uses the “but for”test in all cases. However, the Commentary to the Code explains that, indeciding whether a defendant was a “but for” cause of a “result,” onewould state the “result” with great specificity. See the Main Outline fordetails.

II. PROXIMATE CAUSE (LEGAL CAUSE)

A. General Principles

1. Role of “Proximate Cause” In Legal Analysis

A person who is an actual cause of resulting harm is not responsible forit unless she is also the proximate (or “legal”) cause of the harm. Whenthe law states that a defendant was the proximate cause of a result, thisis a shorthand way of saying that it is morally just to hold this personresponsible for the harm.

2. Common Law, Model Penal Code, and Study Point

As with any “what is just” analysis, there is no single or straightforwardanswer. The common law provides various potential factors to consider.The drafters of the Code have another way of handling the issue: theytreat “proximate causation” as a culpability, rather than causal, issue.The MPC issue is whether the defendant can be said to have purposely,knowingly, recklessly, or negligently (whichever is relevant in a partic-ular case) caused “a particular result” if the “result” occurs in an odd orunexpected manner. The Code takes all of the common law factorsdiscussed below and basically rolls them into one, explicit, policyquestion for the jury: Was “the actual result . . . too remote or accidentalin its occurrence to have a [just] bearing on the actor’s liability or on thegravity of the offense.”

B. Direct Cause

A direct cause is a but-for cause, in which no other cause intervenes betweenit and the resulting social harm. A voluntary act that is a direct cause of thesocial harm is also a proximate cause of it. This is because there is no othercandidate for causal responsibility.

CAPSULE SUMMARY 23

C. Intervening Cause

1. Definition

An “intervening cause” is an actual cause (a “but for” cause) of socialharm that arises after D’s causal contribution to the result.

2. General Role of Intervening Causes

An intervening cause does not necessarily relieve a defendant of causalresponsibility for the resulting harm. At common law, various factorscome into play in proximate causation analysis.

3. Nature of Intervening Cause

It is useful, although not always dispositive, to determine whether theintervening cause was “dependent” or “independent” of the defendant’sact.

a. “Dependent” and “Independent” Distinguished

An intervening cause is dependent if it occurs in response to thedefendant’s earlier conduct. An intervening cause is independent ifthe factor would have come into play even in the absence of thedefendant’s conduct.

b. Legal Significance of Terminology

Generally speaking, a defendant is responsible for a dependentintervening cause, unless the dependent intervening act was notonly unforeseeable but freakish. In contrast, a defendant is notordinarily responsible for an independent intervening cause, unless itsoccurrence was foreseeable to a reasonable person in the defen-dant’s situation.

4. Other Important Factors

a. Intended Consequences Doctrine

In general, a defendant is the proximate cause of a result, even ifthere is an intervening cause, if the defendant intended the resultthat occurred. But, one should be very precise in stating what resultthe defendant intended: a person may want someone dead in a

24 CAPSULE SUMMARY

particular manner, in which case this doctrine only applies if theresult occurs in the desired manner.

b. Free, Deliberate, Informed Human Intervention

In general, a defendant is not the proximate cause of a result if a free,deliberate, and informed act of another human being intervenes.

c. Apparent Safety Doctrine

Even though the defendant has created a dangerous situation, she isnot responsible for the ensuing result if it can be determined that thedangerous situation created by the defendant is over—that thevictim, once at risk, has reached apparent safety.

■ PART SIX: DEFENSES TO CRIME: JUSTIFICATIONS

I. JUSTIFICATION DEFENSES: GENERALLY

A. Definition

A justification defense is one that indicates society’s conclusion that thedefendant’s conduct was morally good, socially desirable, or (at least) notwrongful.

B. Basic Structure of Justification Defenses

In general, a justification defense contains three components.

1. Necessity

Ordinarily, use of force against another is not justifiable unless it isnecessary.

2. Proportionality

Ordinarily, a person may not use force that is disproportional to thethreat that motivates the use of force. For example, deadly force shouldnot be used to repel a non-deadly threat.

CAPSULE SUMMARY 25

3. Reasonable Belief

Ordinarily, a defendant must possess a reasonable (even if incorrect)belief that the use of force is necessary and proportional to the supposedthreat.

II. SELF-DEFENSE

A. Common Law

1. General Rule

Subject to clarification below, a person is justified in using deadly forceagainst another if: (a) he is not the aggressor; and (b) he reasonably believesthat such force is necessary to repel the imminent use of unlawful deadlyforce by the other person.

2. Definition of “Deadly Force”

The term “deadly force”—whether applied to the actions of the aggres-sor or the person resisting aggression—is typically defined as “forcelikely to cause, or intended to cause, death or serious bodily harm.”

3. “Aggressor”

An aggressor may not use deadly force in self-defense. It is possible,however, for an aggressor to purge himself of his status as an aggressorand regain the right of self-defense.

a. Definition

An “aggressor” is one who commits an “unlawful act reasonablycalculated to produce an affray foreboding injurious or fatal conse-quences.”

b. Losing the “Aggressor” Status

i. Nondeadly Aggressors

A, a nondeadly aggressor, may regain her right of self-defenseagainst B, if B responds to A’s nondeadly aggression bythreatening to use excessive—deadly—force in response. Courtsdiffer, however, regarding how A regains the right to usedeadly force.

26 CAPSULE SUMMARY

(1) Majority Rule

A immediately regains her right of self-defense, as soon as Bthreatens excessive force.

(2) Minority Rule

If B responds to A’s nondeadly aggression by threateningto use deadly force against A, A may not use deadly forcein self-defense unless A first retreats, and B continues tothreaten A with deadly force. If no safe retreat is possible,however, A may immediately use deadly force.

ii. Deadly Aggressor

A, a deadly aggressor, loses the right of self-defense in a conflictunless she abandons her deadly design and communicates thisfact to B.

4. Proportionality of Force: Deadly Against Deadly

Deadly force may never be used in response to a nondeadly threat, evenif this is the only way to repel the nondeadly threat.

5. “Unlawful Force”/“Unlawful Threat”

A person has no right to defend herself against lawful justified force. Shemay only respond to unlawful threats of force.

6. “Imminency”

Although modern courts are somewhat less strict than their predeces-sors, generally speaking a person may not use deadly force in self-defense unless the aggressor’s threatened force will occur immediately,almost at that instant.

7. Necessity to Use Deadly Force

A person may not use deadly force unless it is necessary.

a. Use of Less Force

A person may not use deadly force to repel an unlawful deadlyattack if more moderate (nondeadly) force will do the job.

CAPSULE SUMMARY 27

b. Retreat?

Must non-aggressors retreat—flee to a safe place—rather than standtheir ground and use deadly force? Today, there is a conflict on thissubject in non-Model Penal Code jurisdictions. A majority of non-MPC jurisdictions do not have a retreat requirement. A minority ofjurisdictions provide that, with one key exception, a non-aggressormay not use deadly force to repel an attack if she knows of acompletely safe place to which she can retreat. The exception is thata non-aggressor is never required to retreat from her own home.

8. “Reasonable Belief”

a. General Rule

The self-defense rules discussed above are modified by the “reason-able belief” principle, which provides that a person may use deadlyforce in self-defense if she has reasonable grounds to believe, andactually believes, that she is in imminent danger of death or seriousbodily harm, and that use of deadly force is necessary to protectherself, even if her reasonable beliefs in these regards are incorrect.

b. What Is a “Reasonable Belief”?

A reasonable belief is a belief that a reasonable person would holdin the actor’s situation. But, that only shifts the question to the issue:who is a “reasonable person”? Ordinarily, the defendant’s physicalcharacteristics may be incorporated into the “reasonable person.”Many courts today also subscribe to the view that prior experiencesof the defendant (such as her prior experiences with the decedent)that help the defendant evaluate the present situation are relevant.

c. Battered Women and Self-Defense

How should the law deal with the situation of a woman, physicallyabused for years by her husband or live-in partner, who kills herabuser at a moment when she is not, in fact, under imminent attack,for example, when the batterer is sleeping? Can we say that thebattered woman reasonably believed that the batterer represented animminent threat in such nonconfrontational circumstances?

i. Legal Trends

Most courts prohibit an instruction on self-defense if thehomicide occurred in nonconfrontational circumstances, on the

28 CAPSULE SUMMARY

ground that no reasonable juror could believe that the defen-dant, as a reasonable person, would believe that a sleeping manrepresents an imminent threat. But, a few courts now do permitsuch cases to go to the jury, if Battered Woman Syndromeevidence is introduced to show that the defendant, as a batteredwoman, suffered from this condition. See the Main Outline fordiscussion of this syndrome evidence.

B. Model Penal Code

1. General Rule

Subject to the limitations discussed below, a person is not justified inusing deadly force against another unless she believes that such force isimmediately necessary to protect herself against the exercise of unlawfuldeadly force, force likely to cause serious bodily harm, a kidnapping, orsexual intercourse compelled by force or threat, by the other person onthe present occasion. See the Main Outline for a comparison of this ruleto the common law.

2. Limitations on General Rule

Even if deadly force is otherwise permitted, it is impermissible in twokey circumstances.

a. Defendant as Aggressor

As with the common law, the defense is not permitted if the actor isthe aggressor, which the Code defines as one who “provokes” theuse of force against herself “in the same encounter” for the “purposeof causing death or serious bodily injury.”

b. Retreat

The Code follows the minority common law position that a non-aggressor must retreat if she knows that she can thereby avoid theneed to use deadly force with complete safety to herself. This retreatrequirement, however, is itself subject to various exceptions, mostnotably that a person need not retreat from her own dwelling.

c. Other “Non-Necessity” Circumstances

The Code explicitly provides that deadly force may not be used if,subject to various exceptions, the defendant can avoid doing so “by

CAPSULE SUMMARY 29

surrendering possession of a thing to a person asserting a claim ofright thereto or by complying with a demand that he abstain fromany action that he has no duty to take.”

III. DEFENSE-OF-THIRD-PARTIES

A. Common Law

1. General Rule

A person is justified is using deadly force to protect a third party fromunlawful use of force by an aggressor. The intervenor’s right to use forceparallels the third party’s apparent right of self-defense. That is, the thirdparty may use force when, and to the extent that, she reasonably believesthat the third party would be justified in using force to protect herself.

2. Minority Rule

Some jurisdictions provide that a person may only use force to defend athird party if the person being defended would in fact have been justifiedin using the same degree of force in self-defense. That is, the intervenoris placed in the shoes of the party whom she is seeking to defend. If theother person has no right of self-defense, even though the intervenorreasonably believes that she does, the intervenor loses her claim.

B. Model Penal Code

A person is justified in using deadly force to protect another if: (1) theintervenor would be justified in using such force to protect herself, if the factswere as she believed them to be; (2) according to the facts as the intervenorbelieves them to be, the third person would be justified in using such force toprotect herself; (3) the intervenor believes force is necessary for the thirdparty’s protection; and (4) if the third party would be required to retreatunder the Code self-protection rules, the intervenor must attempt to causethe third party to retreat before using deadly force.

IV. DEFENSES OF PROPERTY AND HABITATION

A. Defense of Property

1. Common Law

A person is never justified in using deadly force to defend her real orpersonal property. A person is justified in using nondeadly force if she

30 CAPSULE SUMMARY

reasonably believes that such force is necessary to prevent the imminent,unlawful dispossession of her property. Some jurisdictions also providethat, prior to using force, the property defender must ask the disposses-sor to desist from his conduct, unless such a request would be futile ordangerous.

a. Important Clarification

With one exception, the defender must be in lawful possession ofthe property at the time force is used. If she has already beendispossessed of the property, force may not be used to recapture theproperty. Instead, the victim of dispossession must seek judicialredress. The exception to this rule is that nondeadly force ispermitted in fresh pursuit of a dispossessor of property. In suchcircumstances, the use of force to recapture the property is treated asan extension of the original effort to prevent dispossession.

b. Another Important Clarification

The defender’s right to use force is based on her rightful possessionof the property; she does not need to have title to it.

2. Model Penal Code

The MPC differs from the common law in various key respects.

a. Belief Requirement

As with other justifications defenses, the right to use force to protectproperty is based on the actor’s subjective belief, subject to theprovisions of § 3.09, previously discussed in the Main Outline.

b. Recapture of Property

With one exception, the MPC goes further than the common law inthat it generally authorizes use of nondeadly force to retakepossession of land or recapture personal property, even after freshpursuit has ended, if the actor believes that the dispossessor has noclaim of right to the property. The exception is that in the case ofland, a recapturer may not use force unless she believes that it wouldconstitute an “exceptional hardship” to delay re-entry until she canobtain a court order.

CAPSULE SUMMARY 31

c. Deadly Force

The Code authorizes the use of deadly force if D believes that V: (1)intends to dispossess D of his dwelling other than under a claim-of-right to possession; or (2) intends to commit arson, burglary,robbery or felonious theft inside the dwelling and (2a) V “hasemployed or threatened deadly force against or in the presence” ofD or (2b) the use of nondeadly force to prevent commission of thecrime would expose D or another to substantial risk of seriousbodily harm.

B. Defense of Habitation

1. Common Law

a. Older, Broader Rule

D is justified in using deadly force against V if the actor reasonablybelieves that: (1) V intends unlawfully and imminently to enter D’sdwelling; (2) V intends to commit any felony inside, or to causebodily injury, no matter how slight, to any occupant; and (3) deadlyforce is necessary to prevent the entry.

b. Narrower Rule

Many (perhaps most) jurisdictions no longer apply the broad ruleset out above and instead hold that deadly force is limited tocircumstances in which D believes that V will commit an atrocious(violent) felony inside the dwelling if V enters. The other require-ments set out above (namely (1) and (3)) still apply.

2. Model Penal Code

The Code does not recognize a separate interest in habitation, asdistinguished from defense of property. See the comments above inregard to the MPC defense-of-property claim.

C. Special Issue: Spring Guns

1. Common Law

A person may use a spring gun to inflict deadly force on another “wherean intrusion is, in fact, such that a person, were he present, would be

32 CAPSULE SUMMARY

justified in taking the life or inflicting the bodily harm with his ownhands.” As the italicized words suggest, the user of the spring gun actsat her peril: the deadly force must be necessary.

2. Model Penal Code

The justifiable use of force does not extend to any mechanical device thatis intended to use, or is known to create, a significant risk of causingdeath or serious bodily injury.

V. LAW ENFORCEMENT DEFENSES

A. Crime Prevention

1. Common Law

a. Original (Now Minority) Approach

The original common law rule, followed today in a few jurisdic-tions, is that a police officer or private citizen is justified in usingdeadly force upon another if she reasonably believes that: (1) theother person is committing any felony; and (2) deadly force isnecessary to prevent commission of the crime. This version of thedefense is controversial because it can authorize use of force grosslydisproportional to the threat caused by the felon.

b. Modern (Majority) Approach

The majority rule differs from the original rule in one critical way:deadly force is only permitted if the actor reasonably believes thatthe other person is about to commit an “atrocious” felony, i.e., afelony that involves a significant risk of serious bodily harm to aninnocent person. Among the felonies that are considered atrociousare: murder, manslaughter, robbery, arson, rape, and burglary.

2. Model Penal Code

A police officer or private party may not use deadly force to prevent afelony unless she believes that: (1) there is a substantial risk that thesuspect will cause death or serious bodily harm to another unlesscommission or consummation of the offense is prevented; (2) the force isimmediately necessary to prevent commission of the offense; and (3) use

CAPSULE SUMMARY 33

of deadly force presents no substantial risk of injury to bystanders. Aswith other Code justification defenses, the defense is based on the actor’ssubjective belief, subject always to Code provisions that permit prose-cution for reckless or negligent homicide if the actor’s beliefs werereckless or negligent, as the case may be.

B. Arrest

1. Common Law

a. Rule for Police Officers

A police officer is justified in using deadly force against another ifshe reasonably believes that: (1) the suspect committed any felony;and (2) such force is necessary to immediately effectuate the arrest.As discussed below, this rule is now subject to constitutionallimitation.

b. Special Problem of “Citizen Arrests”

Common law jurists were hesitant to permit private citizens to usedeadly force in “citizen arrests.” Therefore, although the rules varyconsiderably by jurisdiction, limitations on the use of deadly forceby private parties are common. These may include: (i) limitation ofthe use of deadly force to atrocious felonies; (ii) a requirement thatthe private person give notice of her intention to make the arrest;and (iii) denial of the defense if the suspect in fact did not committhe felony, even if the private party reasonably believed that she did.

2. Model Penal Code

Deadly force may never be used by private citizens acting on their ownto make an arrest or to prevent a suspect’s escape. However, a policeofficer (or private citizen assisting the officer) may use deadly force toeffectuate an arrest if she believes that: (1) the force can be applied at norisk to innocent bystanders; (2) such force is immediately necessary tomake the arrest; and either (3a) the felony for which the person is beingarrested included the use or threatened use of deadly force; or (3b) asubstantial risk exists that the suspect will cause serious bodily harm toanother if she is not apprehended immediately.

C. Constitutional Law

1. Overview

The Fourth Amendment to the United States Constitution prohibits“unreasonable searches and seizures” by government officers, including

34 CAPSULE SUMMARY

by the police. In turn, an arrest of a person constitutes a “seizure” of thatindividual. So, police use of force to effectuate an arrest—and, thus,“seize” the person—must be performed in a constitutionally reasonablemanner.

2. Tennessee v. Garner

In Tennesee v. Garner (1985), the Supreme Court’s first decision on thesubject, the Court held that it is unconstitutional for a police officer touse deadly force against an escaping felon unless: (1) the officer has“probable cause to believe that the suspect poses a significant threat ofdeath or serious physical injury to the officer or others” if the suspect isable to escape; (2) the officer first warns the suspect of her intention touse deadly force (“Stop or I’ll shoot!”), unless such a warning would befutile; and (3) the officer reasonably believes that deadly force isnecessary to make the arrest or prevent escape. Thus, deadly force maynot be used against, for example, a fleeing unarmed thief.

3. Beyond Garner

a. Non-deadly Force

In Graham v. Connor (1989), the Court held “that all claims that lawenforcement officers have used excessive force—deadly or not—inthe course of an arrest, should be analyzed under the FourthAmendment . . . ‘reasonableness’ standard.” Among the relevantfactors to be considered, the Court stated, are the seriousness of thecrime, the extent to which the suspect poses an immediate threat tothe safety of others, and the extent to which the suspect is resistingarrest or attempting to escape.

b. Deadly Force, Post-Garner

In Scott v. Harris (2007), the Supreme Court returned to the issue ofuse of deadly force in arrest situations, and suggested that there is norigid rule for determining when police use of force constitutes anunreasonable seizure of a felon: “In the end we must still sloshthrough the factbound morass of ‘reasonableness.’ ” Among thefactors to consider are those set out above, as well as the “relativeculpability” of the persons whose lives are put at risk.

CAPSULE SUMMARY 35

VI. NECESSITY

A. Common Law

1. Elements of the Defense

a. Lesser-Evils Analysis

The actor must be faced with a choice of evils or harms, and he mustchoose to commit the lesser of the evils. Put differently, the harmthat D seeks to prevent by his conduct must be greater than the harmhe reasonably expects to cause by his conduct. The balancing of theharms is conducted by the judge or jury; the defendant’s belief thathe is acting properly is not in itself sufficient.

b. Imminency of Harm

The actor must be seeking to avoid imminent harm. This rule isstrictly enforced: if there is sufficient time to seek a lawful avenue,the actor must take that lawful route.

c. Causal Element

The actor must reasonably believe that his actions will abate thethreatened harm.

d. Blamelessness of the Actor

Many courts and/or statutes provide that the actor must not be atfault in creating the necessity.

2. Homicide Prosecutions

It is unclear whether the defense of necessity applies to the crime ofmurder. Fortunately, the issue has only rarely arisen. The leadingcase—and the one most likely to be in your casebook—is Regina v. Dudleyand Stephens. Read the Main Outline for discussion of this case.

B. Model Penal Code

1. Elements

A person is justified in committing an act that otherwise wouldconstitute an offense if: (a) the actor believes that the conduct is

36 CAPSULE SUMMARY

necessary to avoid harm to himself or another; (b) the harm that the actorseeks to avoid is greater than that sought to be avoided by the lawprohibiting his conduct; and (c) there does not plainly exist anylegislative intent to exclude the justification claimed by the actor. If theactor was reckless or negligent in bringing about the emergency, thedefense is unavailable in a prosecution for any offense for whichrecklessness or negligence, as the case may be, is sufficient to prove guilt.

2. Comparison to Common Law

Under the Code, the threatened harm need not be imminent. Moreover,the Commentary to the Code expressly states that this defense isavailable in homicide prosecutions.

■ PART SEVEN: DEFENSES TO CRIME: EXCUSES

I. EXCUSE DEFENSES: GENERALLY

A. Excuse: Defined

An excuse defense is one that indicates that, although the actor committedthe elements of the offense, and although his actions were unjustified—wrongful—the law does not blame him for his wrongful conduct.

B. Justification versus Excuse

A justification defense tends to focus on the wrongfulness of an act or a result;an excuse defense focuses on the actor. The distinction between the twocategories of defenses—justifications and excuses—is an important one, morefully laid out in the Main Outline.

II. DURESS

A. Rationale of the Defense: Justification or Excuse?

1. Duress as a Justification Defense

A few courts and treatises treat duress as if it were sub-species of thenecessity defense and, thus, as a justification defense. According to this

CAPSULE SUMMARY 37

view, the only meaningful difference between necessity and duress isthat the former defense involves natural, i.e., non-human, pressures,whereas duress involves human-based threats (e.g., a terrorist demand-ing an innocent person to commit a crime against other innocentpersons; a criminal forcing an innocent person to rob a bank).

2. Duress as an Excuse Defense

Most courts and treatises treat duress as an excuse defense, and not as ajustification defense. Intuitively, most people believe that a coercedperson (based on the definition of duress discussed below) is morallyblameless, but not that she has done nothing wrong. The essence of theduress defense is that a person is not to blame for her conduct if, becauseof an unlawful threat, she lacks a fair opportunity to conform herconduct to the law.

B. Common Law

1. Elements of Defense

Generally speaking, a defendant will be acquitted of an offense other thanmurder on the basis of duress if she proves that she committed theoffense because: (a) another person unlawfully threatened imminently tokill or grievously injure her or another person unless she committed thecrime; and (b) she is not at fault in exposing herself to the threat. See theMain Outline for more details.

2. Coerced Homicides

The common law duress defense does not apply to the offense of murder.The no-defense rule is sometimes defended on the utilitarian groundthat the drive for self-preservation, although strong, is not irresistible;therefore, people should be persuaded (by the threat of punishment) toresist such coercion. The rule is also defended on the moral ground thatit is better to die than to kill an innocent person. However, this latterargument only serves to show that a person is not justified in killing aninnocent person. It does not explain why a coerced actor should not beexcused on the ground that virtually anyone, short of a saintly hero,would succumb to the coercion.

3. Intolerable Prison Conditions

a. The Issue

Suppose a prisoner is threatened by another inmate with sexual orphysical assault, is denied critical medical care by prison officials, or

38 CAPSULE SUMMARY

is placed in some other intolerable condition. Therefore, the inmateescapes confinement, but is caught and returned to prison. She isnow prosecuted for the offense of prison escape. The inmate wishesto avoid conviction by arguing that she fled as a result of theintolerable prison condition. The frequently litigated issue is whetherthe inmate may make such a claim in court; and, if she may, is herclaim one of necessity (justification) or excuse (duress)?

b. The Law

Originally, courts did not permit inmates to raise prison conditionsas a defense to their escape. Today most courts recognize a limiteddefense. Some courts require the escapee to turn herself in after theescape, once the prison condition “has lost its coercive force,” or elsethe defense is automatically lost. Other courts are more lenient andtreat’s an escapee’s failure to turn herself in as just one factor to beconsidered by the jury in determining whether the escapee shouldbe acquitted.

c. Nature of the Defense

Courts are fairly evenly divided on the question of whether thedefense claim is basically one of duress or necessity. See the MainOutline for the conceptual problems and practical significancerelating to framing the defense as a justification or, alternatively, asan excuse.

C. Model Penal Code

1. Defense

The Model Penal Code unambiguously treats duress as an excuse, andnot a justification, defense. Thus, the defense may be raised although thedefendant did not commit the lesser of two evils. Instead, the defendantmust show that: (a) he committed an offense because he was coerced todo so by another person’s use, or threat to use, unlawful force againsthim or a third party; and (b) a person of reasonable firmness would havecommitted the offense. The Code further provides that the defense is lostif the coerced actor put himself in a situation “in which it was probablethat he would be subjected to duress.” Furthermore, if he was negligentin placing himself in the situation, the defense is unavailable if he isprosecuted for an offense for which negligence is sufficient to proveguilt.

CAPSULE SUMMARY 39

2. Coerced Homicides

Unlike the common law, there is no bar to use of the duress defense inmurder prosecutions. See the Main Outline for details of the otherdistinctions between the common law and MPC versions of the defenseof duress.

III. INTOXICATION

A. Common Law: Voluntary Intoxication

1. Definition of “Intoxication”

Intoxication may be defined as a disturbance of an actor’s mental orphysical capacities resulting from the ingestion of any foreign substance,most notably alcohol or drugs, including lawfully prescribed medica-tion.

2. Not an Excuse Defense

A person is never excused for his criminal conduct on the ground that hebecame voluntarily intoxicated. Indeed, the act of getting intoxicatedenhances, rather than mitigates, culpability.

3. Mens Rea Defense

Although voluntary intoxication is not an excuse for criminal conduct,most jurisdictions following the common law provide that a person isnot guilty of a specific-intent offense if, as the result of voluntaryintoxication, he lacked the capacity or otherwise did not form thespecific intent required for the crime. However, voluntary intoxicationdoes not exculpate for general-intent offenses.

4. “Temporary” Insanity

A defendant is not entitled to argue that, due to voluntary intoxication,he did not know right from wrong, or did not know what he was doing,at the time of the offense, even though such a mental state would resultin acquittal on insanity grounds if he suffered from a mental illness.

5. “Fixed” Insanity

Long-term use of alcohol or drugs can cause brain damage or cause theindividual to suffer from chronic mental illness. In such circumstances,

40 CAPSULE SUMMARY

the defendant who seeks acquittal is not claiming he should be excul-pated because he was voluntarily intoxicated at the time of the crime, butrather that, because of long-term use of intoxicants, he is insane. Such aclaim is recognized by the common law, but the applicable defense isinsanity, and not intoxication.

B. Model Penal Code: “Self-Induced” (Voluntary) Intoxication

Subject to one exception, voluntary intoxication is a defense to any crime if itnegates an element of the offense.

1. Exception to General Rule

If the defendant is charged with an offense for which recklessnesssuffices to convict, she cannot avoid conviction by proving that, becauseof intoxication, she was unaware of the riskiness of her conduct. That is,even if the defendant’s actual culpability is that of negligence—sheshould have been aware that her conduct created a substantial andunjustifiable risk of harm—she may be convicted of an offense requiringrecklessness (which ordinarily requires actual awareness of the risk), if thereason for her failure to perceive the risk is her self-induced intoxication.

C. Involuntary Intoxication

1. What Makes Intoxication Involuntary?

Intoxication is involuntary if: (a) coercion: the actor is forced to ingest theintoxicant; (b) mistake: the actor innocently ingests an intoxicant; (c)prescribed medication: the actor becomes unexpectedly intoxicated fromingestion of a medically prescribed drug, perhaps due to an allergicreaction; or (d) pathological intoxication: the actor’s intoxication is “grosslyexcessive in degree, given the amount of intoxicant, to which the actordoes not know he is susceptible.”

2. When Does Involuntary Intoxication Exculpate?

a. Lack of Mens Rea

The defendant will be acquitted if, as a result of involuntaryintoxication, the actor lacks the requisite mental state of the offensefor which she was charged, whether the offense could be denomi-nated as specific-intent or general-intent. This is the common lawand MPC rule.

CAPSULE SUMMARY 41

b. “Temporary Insanity”

Unlike the rule with voluntary intoxication, a defendant will beexculpated on the ground of “temporary insanity” if, due toinvoluntary intoxication rather than mental illness, she otherwisesatisfies the jurisdiction’s insanity test (e.g., she did not know rightfrom wrong, or did not understand what she was doing, because ofinvoluntary intoxication). This is the common law and Model PenalCode rule.

IV. INSANITY

A. Rationale of Defense

1. Utilitarian Argument

A person who suffers from a severe cognitive or volitional disorder, i.e.,a disorder that undermines the actor’s ability to perceive reality (cognition)or to control her conduct (volition), is undeterrable by the threat ofpunishment. Therefore, punishment is inefficacious. See the Main Out-line for counter-arguments.

2. Retributive Argument

The insanity defense distinguishes the mad from the bad; it separatesthose whom we consider evil from those whom we consider sick. Aperson is not a moral agent, and thus is not fairly subject to moralcondemnation, if she lacked the capacity to make a rational choice toviolate the law or if she lacks the capacity to control her conduct.

B. The M’Naghten Test of Insanity

1. Rule

A person is legally insane if, at the time of the act, he was laboring undersuch a defect of reason, from disease of the mind, as: (1) not to know thenature and quality of the act he was doing; or, (2), if he did know it, thathe did not know what he was doing was wrong. See the Main Outline forcriticisms of the M’Naghten test.

2. Clarification of the Rule

a. “Know” versus “Appreciate”

Although the M’Naghten test originally was phrased in terms ofwhether the defendant “knew” the nature and quality of his action

42 CAPSULE SUMMARY

or “knew” right from wrong, many jurisdictions now use the word“appreciate.” “Appreciate” is a word intended to convey a deeper,or broader, sense of understanding than simple “knowledge.” Seethe Main Outline for clarification.

B. “Right/Wrong” Prong

Courts have split fairly evenly on whether this prong refers to legalor moral wrongfulness. In jurisdictions that use the “moral wrong”test, the relevant issue is not whether the defendant believed that hisact was morally right, but rather whether he knew (or appreciated)that society considered his actions morally wrong.

C. The “Irresistible Impulse” (“Control”) Test of Insanity

1. Rule

In general, this supplement to M’Naghten provides that a person isinsane if, as the result of mental illness or defect, she “acted with anirresistible and uncontrollable impulse,” or if she “lost the power tochoose between . . . right and wrong, and to avoid doing the act inquestion, as that [her] free agency was at the time destroyed.” See theMain Outline for criticisms of the test.

D. The “Product” (Durham) Test of Insanity

1. Rule

A person is excused if his unlawful act was the product of a mentaldisease or defect. As subsequently defined, “mental disease or defect” is“any abnormal condition of the mind which substantially affects mentalor emotional processes and substantially impairs behavior controls.”Thus, to be acquitted according to this rule, two matters must be proved:the defendant suffered from a mental disease or defect at the time of thecrime; and, but for the mental disease or defect, he would not havecommitted the crime. See the Main Outline for criticisms of the test.

E. Model Penal Code Test of Insanity

1. Rule

The MPC test represents a broadened version of the M’Naghten andirresistible impulse tests. With modifications, it retains the second prong

CAPSULE SUMMARY 43

of M’Naghten and adds to it a volitional prong. The Code provides thata person is not responsible for her conduct if, at the time of the criminalact, as the result of a mental disease or defect (a term left undefined), shelacked the substantial capacity either: (1) to appreciate the criminality(or, in the alternative, wrongfulness) of her actions; or (2) to conform herconduct to the dictates of the law.

2. Closer Analysis

a. Avoiding All-or-Nothing Judgments

Both MPC prongs are modified by the phrase “lacks substantialcapacity.” Total cognitive or volitional incapacity is not required.

b. Cognitive Prong

First, the Code uses the word “appreciate” rather than M’Naghten’s“know,” to permit a deeper, fuller analysis of the individual’scognitive capacity. Second, the drafters chose not to decide between“legal wrong” and “moral wrong”: they invited legislators, inadopting the Code provision, to choose between the words “crim-inality” (legal wrong) and “wrongfulness” (moral wrong).

c. Volitional Prong

This prong is phrased to avoid the undesirable or potentiallymisleading words “irresistible” and “impulse.” A person who has avery strong, but not irresistible, desire to commit a crime, includingone who acts non-impulsively after considerable thought, can fallwithin the language of the MPC.

V. DIMINISHED CAPACITY

A. Putting “Diminished Capacity” in Context

1. Mens Rea Version

A defendant may potentially raise a claim of “diminished capacity” inorder to show that he lacked the requisite mens rea for an offense. In thatmanner, “diminished capacity” works like mistake-of-fact or voluntaryintoxication—it does not excuse the wrongdoer, but serves to show thatthe prosecutor has failed to prove an essential element of an offense.

44 CAPSULE SUMMARY

2. Partial Responsibility Version

“Diminished capacity” may also serve as a highly controversial excusedefense, used exclusively in criminal homicide prosecutions, as a basisfor reducing the severity of the offense.

B. Diminished Capacity and Mens Rea

A sane person may suffer from a mental disability (e.g., mental illness, mentalretardation, Alzheimer’s) that arguably prevents him from forming themental state required for the commission of an offense.

1. Model Penal Code Approach

As a matter of logic, a defendant should be acquitted of any offense forwhich he lacked the requisite mens rea, including those cases in which helacked the mental state because of a mental disability, whether thatdisability is permanent or temporary. This is the position taken by theModel Penal Code.

2. Common Law

Logic notwithstanding, most states permit evidence of an abnormalmental condition, if at all, in order to negate the specific intent in aspecific-intent offense. Psychiatric evidence is inadmissible in the pros-ecution of general-intent offenses. A minority of jurisdictions do notpermit diminished capacity to be claimed in any case. See the MainOutline for the reasons for judicial hostility to the doctrine of diminishedcapacity.

C. Partial Responsibility

1. Common Law

In this country, the partial defense was originated in California andadopted by a small number of other courts. This rule, no longer followedin California, provides that a person who commits a criminal homicideand suffers from some mental illness or abnormality short of insanitymay have her offense reduced because of her diminished mentalcapacity. States that recognize the partial-responsibility claim permitreduction of the offense from first-degree to second-degree murder, orfrom murder to manslaughter. The underlying rationale of the partialresponsibility doctrine is that a person who does not meet a jurisdiction’s

CAPSULE SUMMARY 45

definition of insanity, but who suffers from a mental abnormality, is lessdeserving of punishment than a killer who acts with a normal state ofmind. Therefore, she should be convicted of a lesser offense.

2. Model Penal Code

The Code provides that a homicide that would otherwise be murder isreduced to manslaughter if the homicide was the result of “extrememental or emotional disturbance for which there is a reasonable expla-nation or excuse.” This language is intended to permit courts torecognize a partial responsibility defense.

VI. ENTRAPMENT

A. Overview

Entrapment issues arise when law enforcement agencies use undercoverpolice officers to investigate crimes. The issue is how far the police may go insuch undercover activity. Over time, two different approaches have devel-oped, one called the “subjective” approach, which is followed in federalcourts and many state courts; the other is the “objective” approach followedby some states.

B. Subjective Test

1. Test

Entrapment is proved if a government agent implants in the mind of aninnocent person the disposition to commit the alleged offense andinduces its commission in order that the government may prosecute. Thedefense does not apply if a private party, rather than a governmentagent, induces the crime. According to the Supreme Court, the policemay employ “artifice and stratagem” to trap an unwary criminal, but itis improper when a criminal design, originating with the government, isused to induce an innocent person.

a. Predisposition of the Defendant

Applying the subjective test, entrapment does not occur if thegovernment agent induces a “predisposed” person to commit theoffense. A person is criminally “predisposed,” if, when he is firstapproached by the government, he is ready and willing to committhe type of crime charged if a favorable opportunity to do sopresents itself.

46 CAPSULE SUMMARY

2. Rationale of the Subjective Test

The Supreme Court justifies the subjective version of entrapment on theground that Congress did not intend its criminal sanctions to be appliedto innocent persons induced by government officials to commit criminaloffenses. See the Main Outline for the criticisms of the subjective test.

C. “Objective” Test

1. Test

In states that apply this standard, the test generally seeks to determinewhether “the police conduct falls below standards, to which commonfeelings respond for the proper use of government power.” Some statesprovide that entrapment only exists if the police conduct is sufficientlyegregious that it would induce an ordinary law-abiding individual tocommit the offense.

2. Rationale of the Objective Test

First, the defense should be used to deter police overreaching. Second,some argue that a court should protect “the purity of its own temple” bymaking sure that guilt is not proved by ignoble means. See the MainOutline for the criticisms of the objective test.

D. Procedural Aspects of “Entrapment”

Although entrapment is a criminal law defense, some jurisdictions (primarilythose that apply the objective test) permit the defendant to raise the defensein a pre-trial hearing before a judge. If the judge determines that thedefendant was entrapped, the prosecution is barred. No trial is held. In mostjurisdictions, entrapment is treated like all other defenses: the defendant hasthe burden to raise the entrapment defense and present evidence in supportof the claim at trial. If the factfinder determines that the defendant wasentrapped, it brings back a not-guilty verdict.

E. Entrapment and the Due Process Clause

Although entrapment is not a constitutional doctrine, the Supreme Court hasstated in dictum that police conduct could become so outrageous as to violatethe Due Process Clause of the United States Constitution. More than once,however, the Court has refused to find a due process violation in entrapment-like circumstances.

CAPSULE SUMMARY 47

■ PART EIGHT: INCHOATE CONDUCT

I. ATTEMPT

A. Common Law

1. General Principles

a. Basic Definition

In general, an attempt occurs when a person, with the intent tocommit a criminal offense, engages in conduct that constitutes thebeginning of the perpetration of, rather than mere preparation for,the target (i.e., intended) offense.

b. Grading of Offense

A criminal attempt was a common law misdemeanor in England,regardless of the seriousness of the target offense. Today, modernstatutes provide that an attempt to commit a felony is a felony, butit is considered a lesser felony that the target offense.

c. Merger Doctrine

A criminal attempt merges into the target offense, if it is successfullycompleted.

2. Actus Reus

There is no single common law test of when an attempt occurs. Typically,the common law tests focus on how close the actor is to completing thetarget offense. See the Main Outline for examples of each test.

a. Last Act Test

The rule used to be that a criminal attempt only occurred when aperson performed all of the acts that she believed were necessary tocommit the target offense. Today, there is general agreement that an

48 CAPSULE SUMMARY

attempt occurs at least by the time of the last act, but no jurisdictionrequires that it reach this stage on all occasions.

b. Dangerous Proximity Test

Oliver Wendell Holmes announced the “dangerous proximity tosuccess” test. This standard is not satisfied unless the conduct “is sonear to the result that the danger of success is very great.” In thisregard, courts consider three factors: the nearness of the danger; thesubstantiality of the harm; and the degree of apprehension felt. Themore serious the offense, the less close the actor must come tocompleting the offense to be convicted of attempt.

c. Physical Proximity Test

To be guilty of attempt under this test, an act “must go so far that itwould result, or apparently result in the actual commission of thecrime it was designed to effect, if not extrinsically hindered orfrustrated by extraneous circumstances.” Or, stated differently, theactor’s conduct must approach sufficiently near to the completedoffense “to stand either as the first or some subsequent step in adirect movement toward the commission of the offense after thepreparations are made.”

d. “Unequivocality”/“Res Ipsa Loquitur” Test

This test provides that a person is not guilty of a criminal attemptuntil her conduct ceases to be equivocal, i.e., her conduct, standingalone, demonstrates her criminal intent.

e. Probable Desistance Test

A person is guilty of attempt if she has proceeded past “the point ofno return,” i.e., the point past which an ordinary person is likely toabandon her criminal endeavor.

3. Mens Rea

a. Dual Intent

A criminal attempt involves two “intents.” First, the actor mustintentionally commit the acts that constitute the actus reus of an

CAPSULE SUMMARY 49

attempt, as discussed above. Second, the actor must commit theactus reus of an attempt with the specific intent to commit the targetoffense.

b. Comparing Mens Rea of Attempt to Target Offense

An attempt sometimes requires a higher level of mens rea than isnecessary to commit the target offense. Second, “attempt” is aspecific-intent offense, even if the target crime is general-intent.

c. Special Problem: Attendant Circumstances

At common law, it is unclear what mens rea, if any, an actor mustpossess regarding an attendant circumstance to be guilty of attempt.Some courts hold that a person may be convicted of a criminalattempt if he is, at least, reckless with regard to an attendantcircumstance. Other courts believe that it is sufficient that the actoris as culpable regarding an attendant circumstance as is required forthat element of the target crime. See the Main Outline for clarifica-tion.

4. Special Defense: Impossibility

a. General Rule

The common law distinguished between “factual” and “legal”impossibility. The latter was a defense to an attempt; the former wasnot.

b. Factual Impossibility

Factual impossibility, which is not a defense, may be defined asoccurring when an actor’s intended end constitutes a crime, but hefails to complete the offense because of a factual circumstanceunknown to him or beyond his control. One way to phrase this is:if the facts had been as the defendant believed them to be, would hisconduct have constituted a crime? If yes, then this is a case of factualimpossibility.

c. Legal Impossibility

There are two varieties of “legal impossibility.”

50 CAPSULE SUMMARY

i. Pure Legal Impossibility

This form of impossibility applies when an actor engages inlawful conduct that she incorrectly believes constitutes a crime.

ii. Hybrid Legal Impossibility

The more typical case of legal impossibility occurs when anactor’s goal is illegal (this distinguishes it from pure legalimpossibility), but commission of the offense is impossible dueto a mistake by the actor regarding the legal status of somefactual circumstance relevant to her conduct. See the MainOutline for examples.

B. Model Penal Code

1. General Principles

a. Grading of Offense

Unlike the common law and non-MPC statutes, the MPC generallytreats inchoate offenses as offenses of the same degree, and thussubject to the same punishment, as the target offense. The oneexception is that, for a felony characterized as a “felony of the firstdegree” under the Code—basically, an offense that carries a maxi-mum punishment of life imprisonment—an attempt to commit suchan offense is a felony of the second degree, i.e., a lesser offense.

b. Merger

The common law merger doctrine applies as well under the Code.

2. Actus Reus

The Code abandons all of the common law tests described above andreplaces them with a substantial step standard. Specifically, one has gonefar enough to constitute an attempt if the act or omission constitutes asubstantial step in the course of conduct planned to culminate in thecommission of the crime. One significant difference between the sub-stantial step test and the various common law standards is that, ingeneral, the common law looked to see how close the defendant was tocompleting the crime, whereas the MPC looks to see how far thedefendant’s conduct has proceeded from the point of initiation of thetarget offense.

CAPSULE SUMMARY 51

3. Mens Rea

Please see the Main Outline for clarification of certain inartfully drafted,but critically important, aspects of the MPC criminal attempt statute.

a. Rule

The Code uses slightly different language than the common law, butthe analysis is essentially the same. A person is not guilty of attemptunless he: “purposely engages in conduct that would constitute thecrime”; acts “with the purpose of causing” or “with the belief that itwill cause” the criminal result; or “purposely does . . . an act . . .constituting a substantial step” in furtherance of the offense. Inshort, “purpose” is the mens rea for a criminal attempt.

b. Special Problem: Attendant Circumstances

The “purpose” requirement for an attempt does not apply toattendant circumstances. As to attendant circumstances, a person isguilty of an attempt if she “act[s] with the kind of culpabilityotherwise required for commission of the [target] crime.” In short,the actor need only be as culpable regarding an attendant circum-stance as is required for the target offense.

4. Special Defense: Impossibility

The MPC has abandoned the hybrid legal impossibility defense. Purelegal impossibility remains a defense.

5. Special Defense: Renunciation of Criminal Purpose

The Code (but not the common law) recognizes a defense of “renunci-ation of criminal purpose.” A person is not guilty of a criminal attempt,even if her actions constitute a substantial step in the commission of anoffense, if: (1) she abandons her effort to commit the crime or prevents itfrom being committed; and (2) her conduct manifests a complete andvoluntary renunciation of her criminal purpose. This defense is some-times described as the “abandonment” defense.

II. CONSPIRACY

A. Common Law

1. General Principles

a. Definition

A common law conspiracy is an agreement between two or morepersons to commit an unlawful act or series of unlawful acts.

52 CAPSULE SUMMARY

b. Grading

At original common law, conspiracy was a misdemeanor. Today,conspiracy to commit a felony is usually a felony, but typically is alesser offense than the target crime.

c. Rationale of the Offense

i. Preventive Law Enforcement

Like other inchoate offenses, recognition of the offense ofconspiracy provides a basis for the police to arrest peoplebefore they commit another offense.

ii. Special Dangerousness

Group criminality is considered more dangerous than individ-ual wrongdoing. The thesis is that when people combine tocommit an offense, they are more dangerous than an individualcriminal, because of their combined resources, strength, andexpertise. They are also thought to be less likely to abandontheir criminal purpose if they know that other persons areinvolved.

d. Merger

A common law conspiracy does not merge into the attempted orcompleted offense that is the object of the agreement.

2. Actus Reus: Basics

The gist of a conspiracy is the agreement by the parties to commit anunlawful act or series of unlawful acts together.

a. Overt Act

A common law conspiracy is committed as soon as the agreement ismade. No act in furtherance of it is required. Today, many statutesprovide that a conspiracy does not occur unless at least one party tothe agreement commits an overt act in furtherance of it.

b. Method of Forming the Agreement

The conspiratorial agreement need not be in writing, nor even beverbally expressed. It may be implied from the actions of the parties.

CAPSULE SUMMARY 53

c. Nature of Agreement

The object of the agreement must be unlawful. For purposes ofconspiracy, an “unlawful” act is a morally wrongful act; it need notbe a criminal act.

3. Mens Rea: The Basics

a. General Rule

Conspiracy is a dual-intent offense. First, the parties must intend toform an agreement (the actus reus of the conspiracy). Second, theymust intend that the object(s) of their agreement be achieved. Thissecond intent makes conspiracy a specific-intent offense.

b. Purpose versus Knowledge

i. The Issue

An issue that arises in some conspiracy prosecutions is whethera person may be convicted of conspiracy if, with knowledge thatanother person intends to commit an unlawful act, but withindifference as to whether the crime is committed, he furnishes aninstrumentality for that offense or provides a service to theother person that aids in its commission.

ii. Case Law

The law is split on this issue. Most courts, however, will notconvict a person unless he acts with the purpose of promoting orfacilitating the offense. Knowledge, coupled with indifferenceas to whether the offense is committed, is insufficient. But,sometimes one can infer purpose from knowledge. See theMain Outline.

4. Plurality Requirement

No person is guilty of conspiracy unless two or more persons possess therequisite mens rea. However, the plurality doctrine does not require thattwo persons be prosecuted and convicted of conspiracy. It is satisfactorythat the prosecutor proves beyond a reasonable doubt that there weretwo or more persons who formed the agreement with the requisite mensrea.

54 CAPSULE SUMMARY

5. Parties to an Agreement

Even if it is clear that a conspiracy exists, it is sometimes difficult todetermine who is a party to the conspiracy. The Main Outline, throughexamples, discusses so-called “wheel,” “chain,” and “chain-wheel”conspiracies.

6. Objectives of a Conspiracy

Since the gist of a conspiracy is an agreement, what if the parties to theagreement intend to commit more than one offense. Is this one conspir-acy or more? In general, there are as many (or as few) conspiracies asthere are agreements made.

7. Special Defense: Wharton’s Rule

a. Rule

If a crime by definition requires two or more persons as willingparticipants, there can be no conspiracy to commit that offense if theonly parties to the agreement are those who are necessary to thecommission of the underlying offense. This is Wharton’s Rule, acommon law defense to conspiracy.

b. Wharton’s Rule Exceptions

There are two major exceptions: (1) Wharton’s Rule does not applyif the two conspirators are not the parties necessary to commissionof the offense; and (2) Wharton’s Rule does not apply if morepersons than are necessary to commit the crime are involved in theagreement to commit the crime.

c. Breakdown of the Rule

Wharton’s Rule is increasingly disliked by courts. The SupremeCourt has stated that in federal courts the doctrine is no more thana judicially-created rebuttable presumption. If there is evidence thatthe legislature intended to reject Wharton’s Rule, then the doctrinewill not be enforced.

8. Special Defense: Legislative-Exemption Rule

A person may not be prosecuted for conspiracy to commit a crime thatis intended to protect that person.

CAPSULE SUMMARY 55

9. Special Defense?: Impossibility

Case law here is particularly thin, but it has been stated that neitherfactual impossibility nor legal impossibility is a defense to a criminalconspiracy.

10. Special Defense?: Abandonment

a. No Defense to Crime of Conspiracy

At common law, the crime of conspiracy is complete as soon as theagreement is formed by two or more culpable persons. There is noturning back from that. Once the offense of conspiracy is complete,abandonment of the criminal plan by one of the parties is not adefense to the crime of conspiracy.

b. Relevance of Abandonment

Although abandonment, or withdrawal, from a conspiracy is not adefense to prosecution of the crime of conspiracy, a person whowithdraws from a conspiracy may avoid conviction for subsequentoffenses committed in furtherance of the conspiracy by othermembers of the conspiracy, if the abandoning party communicateshis withdrawal to every other member of the conspiracy (a nearimpossibility in many-member conspiracies).

B. Model Penal Code

1. General Principles

a. Definition

The MPC provides that “a person is guilty of conspiracy withanother person or persons to commit a crime” if that person, “withthe purpose of promoting or facilitating” commission of the crime,“agrees with such other person or persons that they or one or moreof them will engage in conduct that constitutes such crime or anattempt or solicitation to commit such crime,” or if that personagrees to aid the other person or persons in commission of theoffense or of an attempt or solicitation to commit such crime.

b. Grading

A conspiracy to commit any offense other than a felony of the firstdegree is graded the same as the crime that is the object of theconspiracy.

56 CAPSULE SUMMARY

c. Merger

Unlike the common law, a conspirator may not be convicted of bothconspiracy and the target offense(s), unless the conspiracy involvesa continuing course of conduct.

2. Actus Reus: How It Differs from Common Law

a. Overt Act

In contrast to the common law, an overt act is required except forfelonies of the first and second degree.

b. Nature of Agreement

In contrast to the common law, the object of the agreement must bea crime, and not merely an “unlawful” act.

3. Mens Rea

A person is not guilty of conspiracy unless she acts with the purpose ofpromoting or facilitating the commission of the conduct that constitutesa crime. One who furnishes a service or instrumentality with mereknowledge of another’s criminal activities is not guilty of conspiracy.

4. Plurality Rule

The most influential feature of the MPC is its rejection of the commonlaw plurality requirement. The Code defines the offense in unilateralterms: “A person is guilty of conspiracy with another person . . . [if he]agrees with such other person. . . . ” It takes two people to agree, but ittakes only one person to be guilty of conspiracy.

5. Parties to Agreement

Two aspects of the Code need to be kept in mind in determining theparties to a conspiracy. First, conspiracy is a unilateral offense, asdiscussed above. Second, the MPC provides that if a person guilty ofconspiracy knows that the person with whom he has conspired has, inturn, conspired with another person or persons to commit the samecrime, the first person is also guilty of conspiring with the other personsor person, whether or not he knows their identity. See the Main Outlinefor a discussion of how these provisions work to determine whether aperson is party of an existing conspiracy.

CAPSULE SUMMARY 57

6. Objectives of a Conspiracy

The Code provides that there is only one conspiracy between parties,even if they have multiple criminal objectives, as long as the multipleobjectives are part of the same agreement or of a “continuous conspir-atorial relationship.”

7. Special Defenses

The MPC does not recognize Wharton’s Rule, nor any impossibilitydefense.

a. Legislative-Exemption Rule

The Code provides that it is a defense to a charge of conspiracy “thatif the criminal object were achieved, the actor would not be guilty ofa crime under the law defining the offense or as an accomplice.” Theeffect of this language is to permit a defense if enforcement of theconspiracy law would frustrate a legislative intention to exempt thatparty from prosecution.

b. Renunciation of Criminal Purpose

A person is not guilty of conspiracy under the Code if he renounceshis criminal purpose, and then thwarts the success of the conspiracy“under circumstances manifesting a complete and voluntary renun-ciation of his criminal purpose.”

III. SOLICITATION

A. General Principles

1. Definition

At common law, a person is guilty of solicitation if he intentionallyinvites, requests, commands, or encourages another person to engage inconduct constituting a felony or a misdemeanor involving a breach ofthe peace or obstruction of justice.

a. Model Penal Code

The Code definition of “solicitation” is broader than the commonlaw in that it applies to solicitation to commit any misdemeanor (aswell as all felonies).

58 CAPSULE SUMMARY

2. Grading

At common law, a criminal solicitation was a misdemeanor, even whenthe offense solicited was a felony. Today, a solicitation to commit a felonyis usually treated as a felony, but of a lesser degree than the felonysolicited.

a. Model Penal Code

As with other inchoate offenses, the MPC treats a solicitation tocommit any offense other than a felony of the first degree as anoffense of equal grade as the target offense.

3. Merger

The concept of merger applies to the crime of solicitation, just as it doesto the offense of attempt.

B. Actus Reus

1. General Rule

The actus reus of a solicitation is consummated when the actor commu-nicates the words or performs the physical act that constitutes theinvitation, request, command, or encouragement of the other person tocommit an offense.

2. Unsuccessful Communications

At common law, a solicitation does not occur unless the words orconduct of the solicitor are successfully communicated to the solicitedparty. In contrast, the Model Penal Code provides that one whounsuccessfully attempts to communicate a solicitation is guilty ofsolicitation.

3. Relationship of Solicitor to Solicited Party

At common law, a person is not guilty of solicitation if she merely asksanother person to assist in the crime, that is, to be an accomplice in thecrime. To be guilty, a solicitor must ask the other person to actuallyperpetrate the offense herself. In contrast, the MPC provides that aperson is guilty of solicitation if she requests the other person to do someact that would establish the latter person’s complicity as an accomplicein the offense.

CAPSULE SUMMARY 59

C. Mens Rea

1. Common Law

Solicitation is a specific-intent offense at common law. The solicitor mustintentionally commit the actus reus (request, encourage, etc., another tocommit the crime) with the specific intent that the person solicitedcommit the target offense.

2. Model Penal Code

The Model Penal Code does not deal in concepts of “specific intent” and“general intent.” However, the analysis is the same: a person is not guiltyof solicitation unless she acts with the purpose of promoting or facili-tating the commission of the solicited offense.

D. Defense: Renunciation

The Model Penal Code—but not the common law—provides a defense to thecrime of solicitation if the soliciting party: (1) completely and voluntarilyrenounces her criminal intent; and (2) persuades the solicited party not tocommit the offense or otherwise prevents her from committing the crime.

IV. OTHER INCHOATE OFFENSES

A. Assault

1. Common Law Definition

A common law assault is an attempted battery. (A battery is unlawfulapplication of force to the person of another.) However, the common lawrecognized “assault” as an offense before criminal attempt law devel-oped, so attempt doctrines do not apply to it. To be guilty of assault, aperson must engage in conduct that is in closer proximity to completionthan is generally required for other attempt offenses.

2. Modern Statutes

Nearly all states have broadened the definition of assault to include thetort definition of assault: intentionally placing another person in reason-able apprehension of an imminent battery.

B. Inchoate Offenses in Disguise

1. Burglary

Common law burglary involves “breaking and entering the dwellinghouse of another at night with the intent to commit a felony therein.”

60 CAPSULE SUMMARY

Thus, burglary only occurs if a person not only breaks into anotherperson’s dwelling at night, but has the further specific intention tocommit a serious crime inside the dwelling. The latter felony is inchoate atthe time that the actus reus of burglary (breaking and entering) occurs.

2. Larceny

Common law larceny is the trespassory taking and carrying away of thepersonal property of another with the intent to steal the property, i.e.permanently deprive the other of the property. The ultimate harm oftheft comes when the wrongdoer permanently deprives the person of theproperty. That harm has not occurred at the moment when the thiefnonconsensually “takes and carries away” the personal property.

■ PART NINE: COMPLICITY

I. ACCOMPLICE LIABILITY: COMMON LAW

A. General Principles

1. General Rule

Subject to clarification below, a person is an accomplice in the commis-sion of an offense if she intentionally assists another person to engage inthe conduct that constitutes the offense.

2. Accomplice Liability as Derivative Liability

Accomplice liability is derivative in nature. That is, an accomplice’sliability derives from the primary party to whom she provided assis-tance. The accomplice is ordinarily convicted of the offense committedby the primary party.

3. Justification for Derivative Liability

Accomplice liability is loosely based on the civil concept of agency. Thatis, when a person intentionally assists another person in the commission

CAPSULE SUMMARY 61

of an offense, she manifests thereby her willingness to be held account-able for the conduct of the other person, i.e., she allows the perpetratorof the crime to serve as her agent. Essentially, “your acts are my acts.”

4. Common Law Terminology

There are four common law categories of parties to criminal offenses.

a. Principal in the First Degree

He is the person who, with the requisite mens rea, personallycommits the offense, or who uses an innocent human instrumental-ity to commit it. The “innocent instrumentality doctrine” providesthat a person is a principal in the first degree if she dupes or coercesan innocent human being to perform the acts that constitute anoffense.

b. Principal in the Second Degree

She is the person who intentionally assists the principal in the firstdegree to commit the offense, and who is actually or constructivelypresent during its commission. A person is “constructively” presentif she is close enough to assist the principal in the first degree duringthe crime.

c. Accessory Before the Fact

She is one who intentionally assists in the commission of the offense,but who is not actually or constructively present during its com-mission.

d. Accessory After the Fact

She is one who knowingly assists a felon to avoid arrest, trial, orconviction.

B. What Makes a Person an Accomplice: Assistance

A person “assists” in an offense, and thus may be an accomplice in itscommission, if she solicits or encourages another person to commit the crime,or if she aids in its commission.

1. If No Assistance

A person is not an accomplice unless her conduct in fact assists incommission of the crime.

62 CAPSULE SUMMARY

2. Trivial Assistance

If a person intentionally aids in the commission of an offense, she isliable as an accomplice, although her assistance was trivial. Indeed, anaccomplice is liable even if the crime would have occurred without herassistance, i.e., she is guilty although her assistance did not cause thecommission of the offense. Because any actual assistance, no matter howtrivial, qualifies, a person may be an accomplice merely by providingpsychological encouragement to the perpetrator.

3. Presence at the Scene

A person who is present at the scene of a crime, even if she is present inorder to aid in commission of the offense, is not an accomplice unless she infact assists in the crime. Although “mere presence” does not constituteassistance, it does not take much to convert presence into trivialassistance. In some circumstances, a person’s presence could providepsychological encouragement to the principal, which is enough totrigger accomplice liability.

4. Omissions

Although a person is not generally an accomplice if she simply permitsa crime to occur, one may be an accomplice by failing to act to preventa crime when she has a duty to so act.

C. What Makes a Person an Accomplice: Mens Rea

1. Rule

A person is an accomplice in the commission of an offense if shepossesses two mental states. She must: (1) intentionally engage in theacts of assistance; and (2) act with the level of culpability required in thedefinition of the offense in which she assisted.

2. Crimes of Recklessness or Negligence

The prosecutor does not have to prove that the accomplice intended acrime of recklessness to occur: it is enough that she was reckless inregard to the ensuing harm; as for a crime of negligence, it is enough toshow that the would-be accomplice was negligent in regard to theensuring harm.

3. Natural-And-Probable-Consequences Doctrine

An accomplice is guilty not only of the offense she intended to facilitateor encourage, but also of any reasonably foreseeable offense committed

CAPSULE SUMMARY 63

by the person whom she aided. That is, once the prosecutor proves thatA was an accomplice of P in the commission of Crime 1 (using theanalysis discussed so far), A is also responsible for any other offensecommitted by P that was a natural and probable consequence of Crime1.

D. Accomplice Liability: If the Perpetrator Is Acquitted

1. If No Crime Occurred

If a jury finds that the alleged crime never occurred and, therefore,acquits the principal in the first degree, it logically follows that anyaccomplice must be acquitted as well, as there is no guilt to derive onecannot be an accomplice to a nonexistent crime.

2. If Perpetrator Is Acquitted on Grounds of a Defense

If a jury acquits the alleged perpetrator of a crime on the ground that hewas justified in his actions, then the accomplice should also be acquitted,as this means she aided in a justified (proper) act. But, if the jury acquitsthe perpetrator on the ground of an excuse, the jury has determined thata crime has occurred. The perpetrator’s excuse claim is personal to him,and should not protect the accomplice.

E. Perpetrator and Accomplice: Degrees of Guilt

The common law rule used to be that an accessory before the fact could notbe convicted of a more serious offense, or a higher degree of an offense, thanthat for which the principal was convicted. (It has nearly always been thecase that an accomplice may be convicted of a lesser degree of crime than theprincipal in the first degree.) This rule is breaking down. Even in an earlierera, however, most courts treated criminal homicides differently: on theproper facts, courts were and are prepared to convict an accomplice of ahigher degree of criminal homicide than the perpetrator.

F. Special Defense: Legislative-Exemption Rule

A person may not be convicted as an accomplice in her own victimization.

II. CONSPIRACY LIABILITY

A. The Pinkerton Doctrine

At common law, a person may be held accountable for the actions of otherseither as an accomplice, discussed above, or as a conspirator. A controversial

64 CAPSULE SUMMARY

feature of conspiracy law in many jurisdictions is the Pinkerton doctrine,named after the Supreme Court ruling in Pinkerton v. United States. Thisdoctrine provides that a conspirator is responsible for any crime committedby any other member of the conspiracy, whether or not he assisted, if theoffense falls within the scope of the conspiracy or a reasonably foreseeableconsequence thereof.

III. MODEL PENAL CODE

A. Forms of Complicity Liability

1. Innocent-Instrumentality Doctrine

A person is guilty of an offense that she did not personally commit if,acting with the requisite mens rea, she “causes an innocent or irrespon-sible person” to commit the crime. This is equivalent to the common lawinnocent-instrumentality rule discussed earlier.

2. Accomplice Liability

A person is guilty of an offense that she did not personally commit if sheis an accomplice of another person in the commission of the offense.

3. Pinkerton Rule

The Pinkerton conspiracy doctrine discussed above is not recognized inthe Code.

B. What Makes a Person an Accomplice: Assistance

1. Rule

To be an accomplice in the commission of an offense, the person must: (a)solicit the offense; (b) aid, agree to aid, or attempt to aid in itscommission; or (c) fail to make a proper effort to prevent commission ofthe offense (assuming that she has a legal duty to act). See the MainOutline for a comparison of the MPC to the common law.

C. What Makes a Person an Accomplice: Mens Rea

1. Rule

To be an accomplice, the person must act “with the purpose ofpromoting or facilitating the commission of the offense.”

CAPSULE SUMMARY 65

2. Exception to the Requirement of Purpose

The MPC handles the issue of accomplice liability for a crime ofrecklessness or negligence with the following provision: A person who isan accomplice in the commission of conduct that causes a criminal result,is also an accomplice in the result thereof, if she has the level ofculpability regarding the result required in the definition of the offense.See the Main Outline for an example of how this provision works.

D. Accomplice Liability: If the Perpetrator Is Acquitted

The Code provides that an accomplice in the commission of an offense maybe convicted of that offense, even if the alleged perpetrator “has beenconvicted of a different offense or degree of offense or . . . or has beenacquitted.” One must be very careful in reading this provision: if there has beenno offense, then one is not an accomplice “in the commission of the offense.”

E. Special Defenses

1. Legislative-Exemption Rule

Like the common law, the MPC applies the legislative-exemption rule.

2. Inevitable Incidence

An accomplice is not guilty of an offense if her conduct is an inevitableincident to the commission of the offense, such as a customer in the actof prostitution.

3. Abandonment

A person is not an accomplice in the commission of a crime if sheterminates her participation before the crime is committed, and if sheeither neutralizes her assistance, gives timely warning to the police of theimpending offense, or in some other manner prevents commission of thecrime.

F. Special Provision to Consider. Relationship of Accomplice Liability toCriminal Attempts

The Code goes well beyond the common law by permitting an accomplice tobe convicted of a criminal attempt, if she attempts to aid in commission of anoffense, although the other person does not commit or even attempt the offense.

66 CAPSULE SUMMARY

The remainder of this outline has been omitted.

Please see the book for the full outline.